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New Hampshire Surviving Spouse Rights
Support GuideNew Hampshire22 min read

New Hampshire Surviving Spouse Rights

New Hampshire surviving spouse rights: the RSA 560:10 waiver of a will, its six-month deadline, and the $400,000 homestead right under RSA 480:1.

By Settled Editorial

A surviving spouse in New Hampshire can turn down what a will leaves and take a statutory share instead. RSA 560:10 fixes that share as a fraction of the personal estate and of the real estate, set by who else survived the decedent. Claiming it means signing a written waiver of both the will and the homestead right and filing it within six months of the administrator's appointment.

New Hampshire never adopted the Uniform Probate Code, so this share is a plain fraction of the estate rather than a percentage of an augmented estate, and its dollar figures have not moved since 1974. Every rule below was read at the New Hampshire Revised Statutes Annotated on August 3, 2026. If the decedent left no will at all, the starting point is different, and the New Hampshire intestate succession guide covers it.

What a New Hampshire Surviving Spouse Can Claim

Five separate rules protect a survivor, and they do not all stack. The election and the homestead right are a trade, since RSA 560:10 requires a spouse who wants the statutory share to give up the homestead right first.

ProtectionWhat it givesStatuteTiming
Waiver of testate distributionA tiered fraction of the personal estate and the real estateRSA 560:10File within 6 months of appointment
Homestead right$400,000 of the home, held for the survivor's lifetimeRSA 480:1, RSA 480:3-aRuns by operation of law, given up on election
Allowance for present supportA reasonable sum from the personal estate, sized by the judgeRSA 560:1Any time during administration
Forty days in the houseOccupancy without rent, plus reasonable sustenanceRSA 560:2The 40 days after the death
Unpaid wages up to $500Paid by the employer with no administration at allRSA 560:20On affidavit to the employer

Two of these come with a catch worth reading twice. The allowance under RSA 560:1 is charged against the spouse's distributive share rather than paid on top of it. And the homestead right is lost the moment the spouse elects, so the election has to be worth more than the homestead to be worth making.

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The Election: Waiving the Will Under RSA 560:10

RSA 560:10 opens with three conditions. On the death of a testate spouse, the survivor must have elected to waive the homestead right, if any, and the provisions of the will in his or her favor, if any, and elected to claim the statutory rights. Only then does the share vest, and it vests in the estate that remains after the payment of debts and expenses of administration. Creditors come first. The New Hampshire creditor claims guide covers the six-month demand window that decides how much estate is left to divide.

The share itself runs in three tiers, and each fraction applies once to the personal estate and again to the real estate.

Who else survives the decedentPersonal estateReal estate
Children of the decedent, or the issue of deceased childrenOne thirdOne third
No issue, but a mother, father, sister or brother$10,000 plus half the remainder above $10,000$10,000 plus half the remainder above $10,000
No issue, no parent, no sibling$10,000 plus $2,000 for each full year of marriage, plus half the remainder above that sumThe same figure again, computed separately

Three details in that table catch people out.

The $2,000 per full year of marriage in the third tier is unusual, and it is easy to miss on a fast read of the statute. It counts full years from the date of the marriage to the death, which is why the court form asks for the wedding date.

The $10,000 figures date from 1974, 18:1, and RSA 560:10 does not index them. Forty-odd years of inflation later, they are a small floor on top of a half share, so in a modern estate the second and third tiers land close to one half.

Where the inventory value of the real estate does not exceed $10,000, the statute gives the surviving spouse the whole of that remainder and requires no assignment, unless a party in interest petitions the probate court for one.

RSA 560:10, IV closes the loop. Whatever does not pass to the surviving spouse under the three tiers passes under the terms of the will, and the electing spouse takes nothing under that will. The election is all or nothing. A spouse cannot keep a favourable bequest and elect against the rest.

The share is measured against the probate estate only

Property that never enters probate is outside the calculation. A house held in a revocable trust, an account with a payable-on-death beneficiary, and real estate that passes by survivorship all sit beyond the reach of RSA 560:10. The New Hampshire transfer-on-death deed is the sharpest version of this: RSA 563-D:13, V states in terms that property conveyed by a transfer on death deed is not part of the probate estate for purposes of a spouse's right to an elective share under RSA 560:10. That deed only works if it clears RSA 563-D:9, which voids it unless it is recorded before the transferor's death and within 60 days of the date it was executed, in the registry of deeds for the county where the land lies. A deed recorded on day 61 is void, and the property falls back into the estate.

For the wider picture of what does and does not run through the court, read how to avoid probate in New Hampshire.

The Six-Month Deadline (RSA 560:14)

RSA 560:14 carries the clock, and it runs from an event most families do not notice at the time. The waiver or release must be in writing and filed in the probate office within six months after the appointment of an executor or administrator, and not afterwards, unless the judge of probate permits it for good cause shown. Nothing about that period starts at the death or at the funeral. It starts when the Circuit Court, Probate Division appoints someone to run the estate, which is the same trigger the rest of the New Hampshire calendar uses. The New Hampshire probate deadlines guide lays out the full schedule.

Where real estate is involved, filing at the court is only half the job. The waiver and release also has to be recorded in the registry of deeds of the county where the real estate is situated, so a spouse electing against a will that touches land in two counties records in both.

The Judicial Branch supplies the paperwork as form NHJB-2498-P, Waiver by Surviving Spouse, a one-page form naming the surviving spouse, the decedent, the date of death, the decedent's last legal residence, and the date of the marriage. The published instructions say it must be signed in the presence of a notary public or a justice of the peace, so an unsigned copy in the mail does not complete the step. One wrinkle in the form's own instructions dates it: written in 2008, they tell filers to enter a "county probate court" name. New Hampshire folded those courts into the Circuit Court, Probate Division under RSA 490-F, so the New Hampshire probate courts directory carries the name each county's court uses today.

The circuit clerk holds the case number and the appointment date, and a written confirmation of that date is what fixes the window. A spouse who assumes the six months run from the death can lose the election while believing there is time left.

The Homestead Right, and Why the Number Changed

New Hampshire's homestead right is separate from the election and is one of the strongest things a surviving spouse holds.

RSA 480:1 now entitles every person to $400,000 worth of a homestead or of an interest in one, and paragraph III caps homestead exemptions held or claimed on the same property at $550,000 in total, with $400,000 the figure for a single person. That number changed recently. The section's own source line reads "2015, 57:1, eff. Jan. 1, 2016. 2025, 282:1, eff. Jan. 1, 2026," so anything published before 2026 reports the old $120,000 amount. The right also reaches manufactured housing, a mobile home, a housing cooperative interest and a condominium, so long as the property is occupied as a dwelling.

Three conditions and one exception shape the claim:

  • The residence must have been used continuously as a primary residence for the previous 12 months (RSA 480:1, II). Sale proceeds stay protected if reinvested in a new primary residence within six months.
  • The beneficiary of a qualifying trust may claim the exemption where the trust owns the property and the rest of the chapter is satisfied (RSA 480:1, V).
  • Full market value may be claimed where the debt behind the attachment or levy came from unpaid medical bills or other debts flowing directly from terminal or catastrophic injury or illness (RSA 480:1, IV).

For a surviving spouse the operative section is RSA 480:3-a. The owner and the owner's husband or wife may occupy the homestead right during the owner's lifetime, and after the owner dies the surviving wife or husband holds it for the rest of that survivor's life. A will cannot take it away: RSA 480:6-a says no devise of the homestead affects the estate of the surviving wife or husband in the homestead right. Nor can a deed signed by the owner alone, since RSA 480:5-a requires the owner and the spouse to execute any conveyance or encumbrance of the homestead right, apart from a purchase-money mortgage.

Against creditors the right holds too. RSA 480:4 exempts it from attachment, from levy or sale on execution, and from liability to be encumbered or taken for the payment of debts, with seven carve-outs, including taxes, mortgages, mechanics liens, condominium and homeowner association liens, domestic support obligations, and debts that existed when the homestead was purchased.

Put the two together and the trade becomes visible. A spouse who keeps quiet keeps a lifetime homestead right in the family home plus whatever the will actually gives. A spouse who elects gives that lifetime right up in exchange for a fraction of the whole estate. Which one wins depends on the value of the home against the value of the estate, and on how long the survivor expects to live there.

The Allowance and the Forty Days (RSA 560:1 and RSA 560:2)

RSA 560:1 lets the judge make a reasonable allowance out of the personal estate for present support, whether the decedent left a will or not. Three things separate it from the family allowance a Uniform Probate Code state would give. It is discretionary rather than an entitlement, it carries no dollar figure at all, and the decree of distribution accounts the whole of it, or such part as the judge deems reasonable, as part of the survivor's distributive share. The statute says the allowance is accounted that way when the survivor elects to take one third or one half of the real estate under RSA 560:10, which is the same election covered above.

RSA 560:2 adds a short right of occupancy: the survivor may remain in the house for forty days after the death without being chargeable with rent, with reasonable sustenance out of the estate in the meantime, and the judge takes that into account when sizing the allowance.

Read the text of those two sections before quoting them. Both are written in unamended nineteenth-century terms. RSA 560:1 speaks of "the widow" and "her present support" and was last touched in 1971. RSA 560:2 speaks of "the house of her husband" and carries no source later than the Revised Laws. The legislature modernised the neighbouring sections and left these two alone: RSA 560:10 says "either husband or wife" and "his or her favor," and RSA 560:3 covers husband, wife, widower and widow alike. So the archaic wording in RSA 560:1 and RSA 560:2 is a drafting relic rather than a statement that only a widow may apply, and the statutes themselves do not resolve how far that relic reaches. A surviving husband asking for an allowance should raise the point with the circuit clerk or a licensed New Hampshire attorney rather than assume either answer. The New Hampshire family allowance guide works through the request in full.

Dower and Curtesy Are Gone

RSA 560:3 abolished them. Neither husband nor wife, widower nor widow, is vested with a choate or inchoate right of curtesy or dower in the real estate of a spouse. The words still appear in older deeds, in title opinions, and inside RSA 560:10 itself, which directs that elected real estate be assigned "in the same manner as dower heretofore has been assigned." That phrase describes a method of setting off land, not a surviving right.

When These Rights Are Lost or Given Up

Four rules end a claim before it starts.

A pre-marriage settlement. RSA 560:15 enforces a settlement made on a wife before marriage that was stipulated to stand in place of her homestead right or distributive share, and bars her from the rights it replaced. RSA 560:16 gives a settlement made on a husband by the wife "a like effect," enforced in like manner. The two sections carry gendered captions and work in both directions when read together. Have a licensed New Hampshire attorney review any prenuptial or postnuptial agreement before relying on it.

A gift in the will. RSA 560:17 treats every devise or bequest by one spouse to the other as standing in lieu of the rights the survivor has by law in the estate, unless the will shows that was not the intention. A generous bequest is presumed to be the substitute for the statutory share, not an addition to it.

Abandonment or conduct amounting to cause for divorce. RSA 560:18 bars a husband who willingly abandoned his wife, wilfully neglected to support her, or has not been heard from through his own neglect for the three years before her death, except for what her will gives him. That section names only a husband and has no counterpart running the other way. RSA 560:19 is written for both: where the decedent was justifiably living apart from the survivor because the survivor was or had been guilty of conduct amounting to cause for divorce, the survivor takes nothing beyond what the will gives.

Divorce itself. RSA 551:13, II revokes any disposition of property a will made to a former spouse after a divorce or annulment, along with any power of appointment conferred on that spouse and any nomination as executor, trustee, conservator or guardian, unless the will says otherwise. Paragraph III does the same for a revocable trust. Remarriage to the same person revives what the section revoked. A decree of separation is not a divorce for this purpose.

One more rule sits underneath the whole chapter. RSA 563:2 provides that where the right to elect an interest in property, or the right to homestead or a family allowance, depends on surviving another person, someone not shown by clear and convincing evidence to have survived by 120 hours is treated as having died first. In a common accident, five days decides whether there is a surviving spouse at all.

Where There Is No Will, the Intestate Share Governs

Where there is no will, RSA 560:10 has nothing to elect against. RSA 561:1, I gives the spouse a share that is usually larger than the electable one, and the whole scheme runs subject to any homestead right.

Who else survivesSpouse's intestate share
No issue and no parentThe entire intestate estate
Issue, all of them shared, and the spouse has no other childrenFirst $250,000 plus half the balance
No issue, but a parent or parentsFirst $250,000 plus three quarters of the balance
Issue, all shared, and the spouse has other childrenFirst $150,000 plus half the balance
One or more of the decedent's issue are not the spouse'sFirst $100,000 plus half the balance

Those dollar amounts come from 2003, 47:1, and RSA 561:1 does not index them either. The New Hampshire intestate succession guide walks the full ladder, and the New Hampshire will requirements guide explains what makes a will valid enough to elect against in the first place.

What the Decision Usually Turns On

The election is a one-way door, and New Hampshire law puts a handful of variables in front of it.

  • The appointment date. The date the executor or administrator was appointed, held by the circuit clerk, starts the six months. The death does not.
  • The will and the inventory. The inventory filed under RSA 554:1 shows what the probate estate holds. The New Hampshire executor duties guide covers what the administrator has to produce and when.
  • The value of the homestead right. Electing gives it up, so $400,000 of protected interest in the home, held for life, sits on one side of the comparison and the tier share sits on the other.
  • Which tier applies. The fraction depends on who survived the decedent, and it runs against the personal estate and the real estate separately.
  • The debts. The share vests in what remains after debts and expenses of administration, so a heavily indebted estate can shrink a one third share to very little.
  • Filing and recording. NHJB-2498-P is signed before a notary or justice of the peace, filed with the Probate Division, and recorded in the registry of deeds of every county holding estate real estate.

How those variables land is specific to one estate, which is why the comparison is worth running with a licensed New Hampshire attorney rather than from a table.

Frequently Asked Questions

Can a surviving spouse be disinherited in New Hampshire?

Not entirely. A spouse left out of a will can waive the will and take a statutory share under RSA 560:10 instead. The share is one third of the personal estate and one third of the real estate where the decedent left children or the issue of deceased children, and it rises above half in the tiers where no children survive. The waiver has to be filed within six months of the administrator's appointment.

How much is the New Hampshire spousal share?

RSA 560:10 sets three tiers, and each one applies separately to the personal estate and to the real estate. Where children or the issue of deceased children survive, the spouse takes one third of each. Where no issue survive but a parent or a sibling does, the spouse takes $10,000 plus half of everything above $10,000 in each. Where no issue, parent or sibling survives, the spouse takes $10,000 plus $2,000 for each full year of the marriage, plus half the remainder above that sum.

How long does a surviving spouse have to waive the will in New Hampshire?

Six months after the appointment of the executor or administrator, and not afterwards, unless the judge of probate allows more time for good cause shown (RSA 560:14). The clock starts at the appointment, not at the death and not at the funeral. Where the estate holds real estate, the waiver has to be recorded in the registry of deeds of the county where that real estate sits.

How much is the New Hampshire homestead exemption in 2026?

$400,000 for one person, and combined homestead exemptions on the same property cannot exceed $550,000, under RSA 480:1 as amended by 2025, 282:1, effective January 1, 2026. Sources published before 2026 report $120,000 and are out of date. Claiming it takes 12 months of continuous use as a primary residence.

Does New Hampshire still have dower and curtesy?

No. RSA 560:3 says neither husband nor wife, widower nor widow, is vested with a choate or inchoate right of curtesy or dower in the real estate of a spouse. What replaced them is the RSA 560:10 waiver, plus the homestead right in RSA 480. Older deeds and title opinions still use the word dower, which is why it keeps surfacing.

Does a transfer on death deed defeat the spousal share in New Hampshire?

Yes, on its own terms. RSA 563-D:13, V says property conveyed by a transfer on death deed is not part of the probate estate for purposes of a spouse's right to an elective share under RSA 560:10. A house that passes by a valid recorded transfer on death deed sits outside the share the surviving spouse can elect.

Related Guides

Estate facts change how these rules land, and the election is a one-way door. Confirm the appointment date and the tier that applies with the circuit clerk or a licensed New Hampshire attorney, and work the rest of the series from the New Hampshire probate hub.

Sources:

It is not legal advice.

Information current as of August 3, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in New Hampshire can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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